BTX v CPO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BTX v CPO & Ors [2023] NSWPIC 682
APPLICANT:	BTX
FIRST RESPONDENT:	CPO
SECOND RESPONDENT:	BVU
THIRD RESPONDENT:	BTT
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	19 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit; the deceased was the sole director and employee of the respondent company; the deceased suffered a needle stick injury whilst attending upon a construction site where a residential dwelling was being built that was purchased in the name of the deceased; the deceased suffered an psychological injury as a result of the needle stick injury and committed suicide; Hook v Rolfe; Skea v Legg; Held –there was a sufficient employment connection to the attendance at the construction site; the puncture wound arose in the course of employment; first respondent to pay lump sum benefit and incurred funeral expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The names of the deceased, applicant, second and third respondents are to be de-identified in the publication of this decision. 2. BPG died on 24 April 2018 as a result of an injury arising out of or in the course of his employment with the respondent on 15 February 2018. He suffered a consequential psychological condition arising from the injury. 3. The first respondent is to pay the lump sum benefit of $794,850. 4. The first respondent is to reimburse the applicant for incurred funeral expenses up to the sum of $15,000. 5. The matter is to be listed for telephone conference in respect of apportionment.

STATEMENT OF REASONS

BACKGROUND

BPG (the deceased) was the sole director and employee of CPO (CPO - the first respondent), a business that was involved in building and construction.
BPG purchased a block of land in Moss Vale in his personal name. When the property was near completion, tiles were purchased in the name of BTT (the third respondent) to be used in the Moss Vale property.
BPG picked up the tiles and transported them to the Moss Vale property and whilst there experienced a puncture type wound to his toe on 15 February 2018. He assumed the puncture was caused by builders wire.
On 24 February 2018 BPG returned to the property with his wife BTX (the applicant) when he discovered a hypodermic needle sitting in the soil, in the vicinity of where the puncture wound had occurred.
The applicant’s case is that the deceased then suffered a consequential psychological condition, which ultimately led to his suicide on 24 April 2018.
The parties have requested that the primary liability issue is determined before issues of apportionment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did an injury occur?
(b)    Did BPG’s presence at the property have any relationship with his employment with CPO?
(c)    Has there been a break in the chain of causation?

Issues not in dispute

The applicant was employed by the respondent company.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply from the first respondent, second respondent and BVU (third respondent);
(c)    Application to Admit Late Documents dated 19 July 2023, 31 August 2023, 13 September 2023 and 18 September 2023, 17 October 2023.
I will now look at the evidence that has been filed by both parties, which attention given to evidence that was the subject of submissions.

BTX

BTX is the applicant widow of the late BPG who died on 24 April 2018. She has prepared a statement dated 26 October 2021.[1] It is obvious that they were very much in love and looked forward to a bright future together. BPG adored his daughter and was excited about a new pregnancy.
[1] Application page 1.
BTX describes her husband as being the sole director and employee of the first respondent (CPO). He lodged tax returns for the company and also an individual tax return which was in respect of wages paid to him as an employee of that company.
BTX said that her involvement in the CPO business was that she would prepare a monthly invoice in which she would set out what CPO was charging for services provided.
Concurrently while contracting for infrastructure works, BPG has also started to become involved in property development opportunities. He had purchased land at 43 Baker Street, Moss Vale, on which he planned to build a house. The land was eventually sold in June 2015 and a profit was made on the sale which BPG then used to purchase another block in Moss Vale in a new subdivision which BPG had identified as having better commercial prospects.
BTX understood that the site was not for the purpose of moving to Moss Vale, in fact she had never visited the site and she and her husband both enjoyed living in the eastern suburbs of Sydney. They had a plan and that was to eventually live in Maroubra or Botany. She understood that BPG’s plan was that the money gained from the Moss Vale development would buy land preferably in Maroubra with a view to a duplex development and use the sale of one to fund the purchase of the other.
BTX understood that her husband bought the site in around July 2015 for $160,000 in his name and borrowed the money to construct the house on the land also in his name. She understood that her husband initially planned to take time off work to build the house himself however found that a project home could be built for less than what he would make by continuing to work. BTX went with him to view various project home exhibitions and they eventually selected one from Allworth Constructions Pty Limited.
A contract was drawn between the deceased and Allworth with a contract price of $307,336 of which BPG paid $81,251 and borrowed the residual sum of $222,115 from ANZ Bank. All the contractual material was in her husband’s name as BTX assumed it was a business venture. However, if a house was to be bought which was going to be a family home she would then have anticipated that it would be bought as a joint enterprise between herself and her husband.
As time progressed the house was constructed and BPG was to perform the landscaping with close friend Dave Hoolahan. Mr Hoolahan had a landscaping business and earthmoving equipment. BTX understood that the landscaping would be done at “mates rates” and that is why Mr Hoolahan’s skills were being utilised. She also assumed that her husband would provide the material at trade cost which would then be a business deduction for CPO and so it would be the cheapest method to get the house completed.
BTX understood that tiles needed to be purchased for an alfresco area and they would then need to be moved to the site. The deceased had considered using a subcontractor for the delivery but decided that he could do it himself if he could get the use of a truck to do that job. He then arranged to borrow a truck from Mr Hoolahan to pick up and deliver the tiles to the site.
On Friday 15 February 2018, BPG was to deliver the tiles to the site at Moss Vale. He had left home and went to Blacktown to borrow the truck from Mr Hoolahan and then to the tile factory outlet at Smithfield to pick up the tiles and deliver them to the site.
BTX remembers her husband coming home pretty late that night. Unfortunately, his phone had died and he couldn’t make any phone calls to her. He mentioned that he was unable to park the truck in the driveway so he was required to carry the tiles up to the garage and he had met one of the neighbours and it had been dark when he was unloading the tiles.
BTX observed her husband was wearing only shorts and thongs.
It wasn’t until 24 February that BTX was told by her husband that he had pricked his toe on 15 February 2018. He said he couldn’t see what had pricked his toe because it was dark but he assumed it was just some wires the builders had left behind. He didn’t remember any ongoing discomfort in his toe or anything that caused him to stop and check his toe. It wasn’t until later that evening when he got home that he noticed a little bit of dried blood on his toe and he put that down to the pricking incident earlier that evening.
On 24 February 2018 BPG and BTX arranged to meet a tiler at the Moss Vale site and to go for a drive to the southern highlands and to experience the beautiful part of the country that it is. They had arranged for their daughter to go to a friend’s child’s birthday party together being looked after by BTX’s sister, Fiona Morgan.
On the way to the site BTX observed her husband to be his usual positive and enthusiastic self about things for the future as his business was going well. He expected that after the construction costs he may obtain a nett gain profit of around $200,000 to $250,000 after the sale of the property.
BPG and BTX arrived at the site around 11.00am and discovered that the tiler was running late.
They then went to inspect the site and whilst doing so travelling up the driveway at the front of the house, BPG spotted a hypodermic needle sitting in the soil. BPG said words to the effect “Where did that come from? That’s strange.”
BTX observed her husband pick up the needle with what she now realised was particular care and caution. He then took it to the portaloo at the back of the next block which was under construction and appeared to drop it in the toilet before returning to the front of the garage. They then began to tour the house and discuss its construction.
BPG and BTX then left the house with a plan to return when the tiler was expected to arrive. They ordered lunch at a café when she observed her husband’s face dropped as if something had just dawned on him. He then told BTX that when he had delivered the tiles he had pricked his toe on something while carrying the tiles, it was in front of the garage about where he had found the needle. He said he had thought it was a piece of wire left by the builders but now believed it must have been the needle he had found. BTX observed her husband looking panicked and anxious and he started to pace around and wanted to return to the site.
In the car going back to the site BTX observed her husband getting even more anxious and panicked and was saying words to the effect “I can’t believe this has happened to me” and “What did I do to deserve this?” BTX said she was in shock as she had never seen her husband react to something like this before. She tried to reassure him.
After arriving back at the site BPG appeared to be in a very panicked state and immediately went to look outside the garage and then run to the portaloo. He at that stage could not find the needle and thought that if the portaloo hadn’t been connected to a drain he would be able to retrieve the needle.
BTX observed her husband to be inconsolable and at that time he was bent over retching as if he was going to be sick. She once again tried to reassure her husband.
When the tiler arrived, BTX said that her husband’s manner sounded rude and indeed she felt uncomfortable about his manner and the way he spoke to the tiler.
BTX called a friend Laura who was an infectious disease nurse in Kings Cross and told her that they had found the needle and that her husband believed he had stepped on the needle and pricked his big toe. Laura indicated that there was a very slim chance of contracting anything from the needle but they should go to the doctor for a blood test.
BPG and BTX decided to attend their doctors on their way back to Sydney. In the consultation BTX thought that the doctor looked very concerned. Whilst BTX had been trying to reassure her husband that it wasn’t serious, the doctor appeared to take a different approach and gave a sense that it was indeed very serious and that the deceased’s response was an appropriate one. A blood test was taken at that time.
Upon returning to home with their infant daughter, BPG and BTX called Laura to discuss what the doctor had said. She felt reassured by Laura’s comments and she assumed her husband did too.
The next morning was Sunday and they headed out normally as they would to an indoor play centre. Usually on return home the family would have a nap after lunch however the deceased did not appear to sleep that day.
BTX says that when she woke up her husband seemed out of character and indeed annoyed at her for going to sleep. She assumed he didn’t consider that she was taking the needle stick events seriously enough.
Later that day BTX wished to go shopping and make a photo book at Harvey Norman however her husband asked if “he really had to go”. She also felt that he didn’t want her to leave so they just went out for pizza instead. She observed her husband to be in a daze and very quiet. BTX started to get annoyed with him at this stage as his mood was ruining the weekend. He said to her that he couldn’t stop thinking about the needle.
BPG returned to work on Monday 26 February 2018 and went to the doctor’s later that day. The results for the blood screening test were negative for HIV and hepatitis and he received immunisation boostrix and twinrix immunisation. BTX observed her husband to be back to his happy self.
On the evening of 27 February 2018 BPG and BTX were watching TV however BPG commented that he had developed a sore arm which BTX thought could have been probably the vaccine. The next morning, BPG woke, and came back to bed as he felt awful and said couldn’t go to work.
BTX went to work and left BPG home in bed.
On her return BTX observed her husband still feeling sick and she slept in a different bed as she didn’t want the rest of the family to catch what BPG had.
On the Friday, BPG attended an induction for a new job but still wasn’t feeling any better. He attended for a couple of hours and then had to rest in the car for a couple of hours before driving home.
BPG had to start a new job on the following Monday and when he came home BTX observed him to be very upset. He kept saying something wasn’t right and he felt that he was dying. They then went to the hospital and different tests were taken and when the test results returned BTX was asked to leave the room. BPG told his wife that at that time he was asked if he had ever slept with men which horrified him and became convinced him that he could have picked something up from the needle stick injury.
The following day BPG returned to work however still felt sick and indeed at one point phoned his wife from the job crying saying he thought he was dying. He felt that something wasn’t right and his body was shutting down. That was the last day that BPG ever worked.
BPG returned to the hospital on multiple occasions with no diagnosis however on the fourth visit BTX insisted and was distraught that he needed to be admitted and he was then kept there for a week with no diagnosis.
BTX observed her husband to be more content in the hospital and he was sleeping. His mood appeared to be improving.
BTX felt frustrated that there was still no diagnosis so she made an appointment with an acupuncturist and BPG left the hospital without formal discharge.
The acupuncturist indicated that she found what was happening with BPG very unusual and she had “never seen anything like what was happening in his body”.
The hospital contacted BPG and BTX and they indicated that he had high iron levels. After hearing this information BPG self-diagnosed himself as having haemochromatosis.
At that point BPG had lost between 5 to 8kg in weight, he had lost muscle and he had barely been eating and he did suffer stomach cramps and his panic attacks were getting worse.
When BPG was at home he was confined to bed other than for hospital visits. He was able to drive. He complained of widespread muscular and joint pain, fatigue, headaches, stomach aches, diarrhoea, vomiting, sweating, weakness, panic attacks and very low mood.
BPG suffered a significant panic attack whilst waiting on the tests for haemochromatosis.
Whilst talking to her sister, BTX was advised that the doctor’s receptionist had phoned her by mistake. They then tried to get in touch with BPG and were unsuccessful.
After hearing that the doctors were trying to get in touch with him, BPG started to panic saying the doctor wouldn’t call him on a Saturday unless something was seriously wrong. It appears that BPG decompensated and said he knew he had caught something from the needle stick. BPG didn’t sleep at all that night and a further doctor’s appointment was made on Sunday to hear what the results were.
On attendance at the doctor’s surgery on the Sunday a diagnosis of haemochromatosis was given and BPG appeared relieved.
The doctor arranged for BPG to be referred to the Red Cross to have blood taken, however BPG perceived this as inappropriate as he had to tell them about the needle stick injury and no one should use his blood in case he had picked something up from the needle stick.
BTX started looking for alternate forms of treatment and wanted to try raki, for which they attended a practitioner in Surry Hills. BTX observed her husband to be very anxious and distressed after that consultation.
BTX observed her husband to be constantly reminding her that he loved her and that she had given him the best years of her life. BPG told his wife that he was worried he was going crazy and that he wished her to have him committed if that was indeed the case. She observed that he couldn’t sleep and when he did, he would have terrible nightmares.
BTX attended a general practitioner (GP) appointment on 17 April 2018 where BPG’s mental health was discussed. As a result of the history given by BTX which included spontaneous sobbing and her husband being inconsolable, a mental health plan was developed. Under the plan BPG was given a referral to Miss Angela Jacovac, a psychologist who works in Maroubra for the management of his depression and anxiety symptoms related to his diagnosis of haemochromatosis and unnamed diagnosis of sore joint fevers.
The following day BPG and BTX had a consultation via video link with ‘Patricia’[2] who was a homeopath. It was Patricia’s opinion that his condition was a result of the vaccinations he had received and that the perception that his body was “shutting down” was a reaction to the vaccines he had received. She recommended that he go on a detoxification program where he should stop taking any of the medication he had been prescribed which included Endone, Celebrex and Nexium, she also advised against any antidepressants. She arranged for him to take various herbal concoctions which he was to take along with fruit. He commenced the detox program on 20 April 2018.
[2] The surname is not identified in the filed documents.
The detox program also coincided with a request from the Red Cross that BPG would need to go off opiate medication before commencing venesections for his haemochromatosis.
BPG’s condition continued to flare up to the extent that BTX decided for her young daughter to go and stay with her sister for a short period.
On 24 April 2018 she went to pick up her daughter and they agreed that they were going to try and stay calm and upbeat in front of her. The events of that day are well known to the parties and don’t need to be repeated.

Darragh Hussey

Darragh Hussey has prepared a statement which has been provided by way of late documents.[3] Mr Hussey first met the deceased in 2003 when they were both attending the equivalent of Irish TAFE doing their bricklaying apprenticeship. They became close friends and travelled together.
[3] Late documents dated 19 July 2023.

Before BPG’s death, Mr Hussey observed him to be “on an absolute high”. They had business opportunities happening with development, the investment property was at “lock up” and had already appreciated in value beyond what had been planned. He observed his friend to be happy that a second child was on the way and they were looking forward to a trip back to Ireland for Mr Hussey’s wedding.
In relation to business Mr Hussey observed his friend to be excited about business opportunities in the construction industry. The difficulty that they both observed was that whilst they had skills at bricklayers, there was difficulty in access to finance and the capital to fund the opportunities as they arose.
In about 2015 they bid on a block of vacant land which had been zoned for subdivision however were unsuccessful. They continued to look around for properties with a view to do duplex developments. Once again, the stumbling block was the limited availability of capital however the deceased was able to purchase a block of land at Moss Vale which he subsequently sold for a profit.
Mr Hussey understood that the intention was they both continue to rent for domestic accommodation and then they could claim one property as a principal residence and not pay capital gains on the proceeds of the sale so long as they set aside a condition that they lived in it for six months and held it for 12 months further.
Mr Hussey understood that the deceased used the money from the land sale to purchase another block in Moss Vale on which a house was eventually built. Mr Hussey attended the work site and erected a fence around the site as they planned on carrying out the construction between themselves and also using subcontractors for trades.
Mr Hussey understood that the plan was to construct the house, then rent it out and use the house as collateral to obtain finance to construct a duplex in the eastern suburbs preferably around Randwick.
Mr Hussey understood that his friend discovered it was cheaper for them to have a project builder construct the house than it was for themselves although they would use trade contacts and trade discounts in the process.
Mr Hussey had attended the house and understood it had reached lock-up stage by February 2018. His role was to monitor the internet for other properties which they had earmarked and would be inspecting with a view to purchase.
The friends had a plan and indeed had “specs” for a property that they wanted which was in the Randwick Council area, with a 15-18 metre frontage for a “knock down, rebuild” duplex and zoning conditions.
Indeed, in January 2018 the pair spoke to a broker about funding the development as they found several potential sites and the Moss Vale property price was rising.
Mr Hussey understood that whilst the Moss Vale property had been completed, they were deciding whether they would rent it and use it as collateral to fund the duplex or sell it and apply the funds although he understood his friend’s preference was to hold on to it.
Mr Hussey understood that his friend found it was cheaper to buy the tiles with a trade discount purchasing them in the name of CPO and then BPG was going to do the tiling.
BPG contacted Mr Hussey and told him he would need a tipper truck to pick up and deliver tiles and he arranged for BPG to use the truck he had. He gave his friend access to the tipper which he collected at Blacktown, he told his friend not to worry about fuel which was provided through his own company.
Mr Hussey commented that both he and BPG operated their businesses through a private company and were both working directors. He comments that it is a standard condition of subcontracting in the construction industry that subcontractors provide services through a private company and not as sole traders. They are working directors and were paid a wage and provided labour through the company.
Mr Hussey says that there was nothing that he or BPG did which was not performed on behalf of the company because the business structure emphasises incentivises performing work through the company. The structure provided benefits both the deductibility of materials and expenses, GST credits and trade discounts.

Documents

I will now outline the relevant documentation that has been filed as evidence.
There is a tax invoice from the Tile Factory Outlet dated 12 February 2018.[4] The tax invoice is issued to CPO for the provision of tiles. The total of the tax invoice is $2,741.28 and it is dated 12 February 2018.
[4] Application page 179.
There are plans for the house in Moss Vale which have been prepared by Allworth Constructions Pty Limited and have been issued in the name of BPG.[5] It is also clear that a mortgage was granted to a BPG over the property at Moss Vale.[6]
[5] Application page 174.
[6] Late documents dated 17 October 2023, page 6.
Business Advantage statements have been provided from ANZ Bank, the whole of those accounts being in the name of CPO.[7]
[7] The documents are annexed to late documents dated 18 September 2023.
The banking records in large represent daily expenses obviously incurred by BPG at places such as Coles and Woolworths. They also include on 3 October 2016, payments for workers compensation, which I infer are business expenses. It should also be observed that there are handwritten entries on some of those statements which indicate certain purchases were made in a personal capacity such as payments to ‘Sportsbet’ or ‘Moonpig’. There are also transfers to personal loans and payments to the Australian Taxation Office.
There is a significant entry dated 11 September 2018 which is a payment to Wingecarribee Council for rates in the sum of $1,018.13. The Moss Vale property is in the Wingecarribee area, I infer and make a finding of fact that rates were paid in respect of the Moss Vale property. There was no evidence that there was any other likely source for incurring that expense.

Medical evidence

The applicant relies on two reports of Dr Peter Klug.[8] Dr Klug has prepared a thorough report where he extensively considers all the treating material that has been provided to him. I observe that the consideration by Dr Klug is extensive, well-reasoned and persuasive. I also observe that there is no other competing report prepared by the first respondent.
[8] Commencing at page 220 of the Application.
Dr Klug opines that there is no doubt that BPG suffered from a major depressive episode. The onset appears to have been on 24 February 2018. This is in circumstances of no prior psychiatric history.
Dr Klug explains that the main psychological stresses on him at the time of his suicide included a needle stick injury at a work site on 15 February 2018, finding a hypodermic needle at the site on 24 February 2018, the development of a persistent general medical syndrome without any peer diagnosis and the diagnosis of haemochromatosis.
Dr Klug identifies additional factors such as the sudden cessation of all medication including his regular use of Endone as part of the homeopathic detoxification program, a likely associated withdrawal syndrome from oxycodone, his inability to work, the possibility that his physical syndrome was caused by vaccinations and further advice from his homeopath negating the presence of depression and advising him not to consider an antidepressant.
It is Dr Klug’s opinion that there is a close temporal relationship between discovering the hypodermic needle on the construction site on 24 February 2018 and the rapid decline in his mental health.
Dr Klug concluded that the needle stick injury was a substantial contributing factor to the major depressive episode and to the suicide. That is, there is little doubt that the needle stick injury had a substantially adverse effect on his mental state.
In a further report dated 18 April 2023,[9] Dr Klug maintains his opinion and addresses whether the suicide was a consequence of depressive illness or an exercise of free will.
[9] Application page 237.
Dr Klug opines that the depressive illness suffered by BPG created a distorted perception for him of himself and his future. This led to a decision-making process that ended in suicidal ideation and intent. His suicide was in the context of his major depressive illness which was irrational for any sensible person. In those circumstances Dr Klug explained that BPG’s volition or free will was overthrown by his major depressive disorder.

SUBMISSIONS

The applicant made the lead submissions which were supplemented by short supportive submissions from the second and third respondents.
The applicant’s submissions focus on the fact that BPG was both a director and an employee of the respondent company. It was argued that there is no evidence to dispute or challenge that BPG was there present on the Moss Vale site in any other capacity other than the course of his employment.
The applicant relied on a decision of Stephan v Pacesetter Cleaning Services Pty Limited[10] which provides authority that whilst the directors control, dismiss, regulate, delegate and organise, the director was also an employee in this case. The submission further went that anything BPG did was authorised by the employer because he was the person who determined what he did.
[10] [1985] NSWCA 45.
The second submission made was that BPG was there present at the site where the respondent company had an interest in that property, that is, he was there and there was nothing unlawful in an employee of a private company being required as part of their duties to perform work at the homes of the directors of the company upon instructions of a director apparently having that authority.[11] BPG was simply there as an employee. He arrives at the site and unloads tiles which have been purchased in the company name, which is consistent with him following a lawful direction of himself.
[11] Mohil Pty Limited v GRE Workers Compensation Insurance NSW Limited & Ors [1995] NSWCC 9.
The applicant also points out that it is quite possible that there was a dual purpose in him being there and relies on a decision of Hook v Rolfe.[12] In that case Glass JA comments:
“The existence of conduct inspired by multiple purposes as a common phenomenon, it raises the problem of classification and connection with the legal standard defined in terms of purpose.”
[12] [1986] 7 NSWLR 40.
The applicant says that you can be both in the course of your employment and doing something else and they are not mutually exclusive. Therefore, if there was a finding that he is there on the basis of a personal capacity, in a hope to achieve capital gain for an investment, there is also the dual purpose of him being there at the request of his company and for the benefit of his company.
The applicant points out that BPG used a company car to drive to Blacktown to see his co-venturer Mr Hussey who then provides him with a truck. BPG then goes and picks up tiles at Smithfield where the purchase of the tiles has been performed by the company and transports them to a building site.
The applicant says that this has to be in the course of his employment, it is for the benefit of the company, the tiles have been paid for by the company and were sitting in the warehouse waiting to be picked up. The company must have some purpose in purchasing these tiles. The applicant also submits that if there is a benefit, personal benefit to BPG in attending the building site delivering the tiles, then he still creates a trust in favour of the company. The company derives a benefit because he has used their resources, the company’s time, the company’s labour for a personal purpose in carrying out the development on the site and there must therefore be a constructive trust created for the company. That is, there is an ancillary incidental benefit to the employer as he was creating a property which the employer has, by operation of law, a trust imposed upon an interest.
The applicant relies on the evidence contained in Mr Hussey’s statement to the effect that there was an ancillary benefit to the company if the Moss Vale property venture created sums of money which could be used for future benefit.
The applicant puts a lot of importance on the evidence of Mr Hussey, which is I observe is uncontradicted. That is, that if the Moss Vale property incurred a capital gain after sale, then that would be used for the benefit of the company in further developments. Even though the property was in BPG’s personal name, the benefit is that they would avoid paying capital gains tax on it and in doing that, all they have done is taken the benefit of a tax structure which was available. It was a rational decision to purchase the property in a personal capacity as the tax implications were to the benefit to the company. The development of capital was a clear ancillary benefit to the company for further property investment.
The applicant also makes a further submission in relation to BPG being on authorised recess at the time of the alleged needle stick injury.
The applicant referred to the banking records which indicate that certain expenses were incurred by the company, which included the tiles, rates for the Wingecarribee Council which denote the close relationship between the company and its interest in the Moss Vale property.
So far as the needle stick injury actually occurring, the applicant relies on the statement of BTX who has provided evidence as to what she heard from her husband. It was submitted that there is a commonsense chain of causation.
I was reminded that there is no doctrine of remoteness in workers compensation law, that is that there is a response that has flowed from the injury and the applicant submits there is nothing to challenge it. That is, BTX gives a detailed account and Dr Klug comments on that detailed account of the puncture wound, then BPG ruminating on what he thinks has occurred and there is nothing to challenge that chain of causation. Further, the treating notes, particularly the general practitioner notes, substantiate the applicant’s concern after the puncture wound.
The applicant also points out that even though the s 78 Notice suggests that it is a diagnosis of haemochromotosis which caused suicidal ideation, there is however no medical evidence to support such a finding. I agree with that submission and observe that this was not pursued at hearing in any event.
Simply put, the applicant argues that there is nothing to support a proposition that the chain in causation is broken, that is, there is an event that occurs on 15 February 2018 which has culminated in a decline in BPG’s mental state and has culminated in his untimely death.
The second respondent submitted that it was reasonable that the house was purchased in the deceased’s personal name, as it was unlikely that the respondent company would be able to obtain finance to do further projects in the future. That is, a company loan may have been less achievable than a personal loan could have been.
The third respondent reminded me that the case brought before the Commission was one of injury with a consequential psychological condition developing.
The first respondent submitted that there was no evidence connecting the deceased’s presence on the site on the date of the puncture wound and it certainly had no connection whatsoever with his employment with the respondent company.
In respect of obtaining the tiles, the first respondent says that while it was quite correct that they were bought in the respondent’s company’s name, there was a reason for this to occur, purely as a matter of convenience. The reason is that there would be a reduced trade rate as opposed to a normal customer rate.
The first respondent submits that the development of the property was a personal endeavour by BPG and was not related to the activities of the company.
The first respondent points to the fact that the site plans were prepared by Allworth Constructions[13] and at that stage the documents indicate there was no involvement by the respondent company.
[13] Application page 171.
The statement of Mr Hussey, it was submitted, makes very broad allegations and the applicant’s wife makes no assertions as to what she understood the respondent company’s involvement was with the Moss Vale development.
The respondent also takes issue with the allegation of the needle stick injury and says it is based purely on speculation. It is only after BPG and BTX return to the property on 24 February that a syringe was found and it is a belief that has formed at that stage that this caused the laceration. The first respondent describes this as pure speculation and would not be sufficient evidence to make a finding that a needle stick injury did indeed occur.
The respondent also states that Dr Klug identifies a number of other stress factors that were present at the time. However, he says that notwithstanding that, there was a close temporal relationship between the needles stick injury and the depressive episode.
The first respondent says that this falls short of the burden the applicant must discharge as the injury is a disease and what they need to establish is that the alleged incident was the main contributing factor of the injury.
The applicant responds to the argument made by the first respondent in respect of Dr Klug’s report and says that Dr Klug is in a position to comment on the physical injury. Section 9A is concerned with the physical injury, not the psychological injury. It is the response to the physical injury is what Dr Klug can comment upon and he does.
The applicant also says that it does not really matter whether it was a piece of wire or whether it was a hypodermic needle. What occurred was an injury. There was a puncture wound to the toe which caused bleeding. That is the pathological change, so an injury was established. The deceased then had a reaction to what appeared to be a quite minor toe injury. It is a psychological reaction to a puncture injury.
I will now discuss the issues and make findings.

Attendance at the site

After considering the submissions I disagree that the attendance at the site has nothing to do with CPO. Looking at the factual matrix in a commonsense fashion, there were tiles sitting in a factory that had been purchased by CPO. There is a benefit to CPO, having purchased the tiles to have them not sit in the factory. The deceased collected those tiles and then moved them on to a site for delivery. It was not in the interests of CPO to have a product ordered in their name to remain to be collected.
I am also convinced that the development generally was of benefit to CPO. Mr Hussey’s evidence is convincing as to the future hopes of the deceased as to capital gain. This capital gain was to be used to fund further business ventures, to which CPO was to benefit.
The evidence provided by Mr Hussey is support of this contention. Mr Hussey, himself had been involved in searching the internet looking for potential locations for the next venture. Mr Hussey and BPG had also recently consulted with a broker to discuss finance in this respect. There was, I infer, a real intention to develop future properties together
I appreciate that the property was purchased in the name of BPG in making these findings. I do not however find that the property was developed with the intention to reside in it. BTX makes it clear that there was an intention to reside in the Eastern Suburbs of Sydney not in Moss Vale. Further, if it was the intention for them to domicile in Moss Vale then the property would have been purchased in joint names.
It is also obvious that any capital gain would have had a benefit to BPG personally. It is well established that for a worker to be in the course of their employment it does not matter that they may have multiple purposes in the event so long as one of the purposes was a work purpose. That it, it does not matter that the deceased was attending the residence for which he hoped to achieve a capital gain on in due course. He was also there for two other reasons, namely delivering tiles which had been purchased in the name of CPO and also visiting the site of a commercial enterprise to which CPO would receive a benefit with future endeavours made possible from any capital gain.

Hook v Rolfe (1986) 7 NSWLR 40 at [44]-[45] provides authority to the extent that there can be multiple purposes for an activity. That is, when looking at the purposes of an activity, it is not necessary to enquire as to the “primary purpose” of the activity. This is an authority which is relevant to the dispute in this matter and obviously highly persuasive (and binding).
The approach in Hook has been followed in Skea v Legg [2000] NSWCC 20, a decision of his Honour Judge Walker in the Compensation Court of New South Wales. In that decision, the applicant worker claimed lump sum compensation. The dispute that arose was whether the worker was motivated by a non-work purpose as well as a work purpose and this destroyed the connection between his conduct and his employment. There can be dual purpose.
In Van Haeften v Caltex Oil[14] Justice Priestley discusses the law to be applied in relation to these types of circumstances. He says:
“An activity may be within the course of the worker’s employment, though its participation in it is voluntary and unremunerated. The question is whether the worker was doing something sufficiently associated with employment incidental to or consequential upon it ... maybe its employer derives benefit even though it would be an intangible benefit from the activity ... he encourages employees to join in an activity.”
[14] (1995) 12 NSWCCR250
I am therefore persuaded that there is a sufficient employment connection to satisfy me that the puncture wound arose out of or in the course of employment. As a primary finding, I find that BPG was in the course of his employment when he delivered tiles purchased in the name of CPO to the Moss Vale property. I also find that there was an ancillary benefit to CPO from achieving a capital gain from the Moss Vale development to fund further ventures.

Did the needle stick injury occur?

There is some dispute as to whether the needle stick injury occurred or not. Ultimately, I am not sure that the applicant is required to prove that it was indeed a needle stick injury, rather that there was a puncture wound, which has not been put in dispute. That is, there is no challenge that on the attendance at the Moss Vale site on 15 February 2018 BPG pricked his toe on something.
The first respondent raises this as a factual issue and I am content to make a factual finding in respect of it.
BTX provides evidence that her husband told her that where he discovered the needle was in close proximity to where he had hurt is toe on 15 February 2018.[15] BPG also said that there was an absence of any building wire in the vicinity, a product he had assumed had punctured his toe on the previous visit, this I find consistent with there being something else that caused the wound. I find it more likely than not that the BPG injured his toe on a discarded needle, whilst delivering tiles in the dark, as assumed by him.
[15] Paragraph 36.

What was the effect of the injury?

BPG consistently provided the same history to treating practitioners in respect of the needle injury. On 24 February 2018 a history is given by the deceased of stepping on something sharp injuring his right big toe. The entry says:
“Yesterday noticed hypodermic needle in vicinity of injury. Now worried. May have been punctured with this needle.”
Then, on 3 March 2018, the applicant gives a consistent history of a needle stick injury to Dr Ibrahim.[16]
[16] Application page 59.
The histories to the doctors are consistent with the evidence of the deceased’s wife who clearly discusses the matter with her husband and took a consistent history of a needle stick being in the vicinity of the area and certainly a puncture wound of some sort. Further, when he attends upon the general practitioner at the Bondi Medical Centre with his wife, BTX gives a history that the doctor did not reassure her husband that the potential for injury was not that serious but rather, appeared to give it some weight and concern. In effect, the doctor tells him that antibodies may not be detected for some time and then the applicant continues to get a deterioration in his health. The applicant submits that there is a temporal connection between the events at the building site and the anxiety he is suffering.
In this case, it appears to me that BTX has given an extremely comprehensive statement which outlines which she understood occurred on both the date of the injurious event and her husband’s physical and mental deterioration thereafter. There is nothing to cause me to accept anything but the reliability of her account. This is consistent with the opinion of Dr Klug who outlines the BPG’s mental state deterioration which commences on 24 February 2018, from which he never recovers.
Based on her account, it appears to me that the following facts are indisputable. On 15 February 2018 BPG suffered an injurious event at the Moss Vale site and then from 24 February 2018 he observed the syringe on the site. BTX provides an accurate and detailed description of what she observes about her husband’s response to the event itself and the medical management thereafter. Quite clearly, he suffers from mental anguish, worry and concern following the workplace injury on 15 February 2018 which ultimately leads him to his death.
I find on the balance of probabilities that there is an unbroken chain of causation between the injurious event on 15 February and the late BPG’s unfortunate death on 24 April 2018.

Orders and findings

BPG died on 24 April 2018 as a result of an injury arising out of or in the course of his employment with the respondent on 12 February 2018.
The first respondent is to pay the lump sum benefit of $794,850. The matter is to be listed for telephone conference in respect of apportionment.
The first respondent is to reimburse the applicant for incurred funeral expenses up to the sum of $15,000.

Other Matters

The names of the deceased, applicant, the second and third respondents are to be de-identified in the publication of any decision issued by the Commission.

[2023] NSWPIC 682

19 December 2023